Introduction: crossing urban legal boundaries in northern Europe: merchants and the law, 1350–1600

Abstract

The main question of this special issue is how international traders were able to manage their activities and conflicts successfully when they regularly had to cross legal boundaries and were operating in different and overlapping jurisdictions in northern Europe in the period c. 1350–1600. The contributions in this issue approach this central question from a range of perspectives. This introduction identifies these perspectives, as well as common themes and findings, and indicates why it is particularly pertinent to discuss the topic of crossing legal boundaries in the context of urban history. It also discusses relevant historiographical debates and key concepts of urban jurisdiction and jurisdictional boundaries in late medieval northern European towns.

Late medieval urban legal culture was characterized by a relative density of law courts and jurisdictional plurality. Not only were towns themselves often legally separate entities from the countryside around them, but their inhabitants could also be subject to overarching jurisdictions covering a larger area, both secular and ecclesiastical, as well as lesser jurisdictions such as market or guild courts. As such, townspeople were used to having access to different law courts and crossing legal boundaries within their town from one jurisdiction to the other. There was one urban group whose members had to move far beyond these familiar jurisdictions and borders in order to be able to conduct their business. International traders, be they skippers or merchants, had to travel to foreign regions as part of their usual activities. Especially in cases of conflict, this could lead to problems when they had to negotiate jurisdictions in which they were legal outsiders. This special issue addresses the question how international traders were able to manage their activities and conflicts successfully when they regularly had to cross urban legal boundaries and were operating in different and overlapping jurisdictions in northern Europe in the period c. 1350–1600. The contributions approach this central question from a range of perspectives, which will be discussed in more detail below. Firstly, it is useful to establish why it is particularly relevant to discuss this question in the context of urban history, before we introduce the concepts that are central to the main question and which therefore feature prominently in the contributions.

International trade in the later Middle Ages was an almost exclusively urban endeavour. Goods were transported from port to port and from city to city, where logistical and administrative structures were in place to receive and further distribute them.¹ Merchants resided in towns and cities, where, in the later Middle Ages, they also tended to be heavily involved in urban governance.² Many of the northern European urban councils, which were involved in all three branches of government (legislative, executive and judiciary), consisted wholly or partly of members involved in trade in one capacity or another. As a result, urban governing bodies were not just interested in facilitating trade because having ready access to any goods that were required benefited the town community as a whole, but also because their members had a personal interest in ensuring that business ran smoothly.³ In their own community, this could come in the form of services to register business transactions and to resolve conflicts. In terms of foreign trade, magistrates might deploy representatives in order to create favourable circumstances, for example by negotiating trading privileges. The extent to which a town’s policies favoured the interests of its own merchants at the expense of those of foreigners, or vice versa, might vary in accordance with that town’s dependence on visitors for their supply of goods.⁴

A second reason why the question of crossing legal boundaries is particularly relevant in an urban context is the fact that towns were often ‘hubs of legal activity’.⁵ Not only were there generally several overlapping jurisdictions in towns, the courts at the heart of these jurisdictions were also often situated in towns. As such, townspeople had access to different legal fora, and they tended to make use of the range of options available to them.⁶ In addition, because of trade and other forms of mobility across legal boundaries, urban courts also had to cater to visitors, while their own citizens might end up litigating before foreign courts in the course of their activities.⁷

The topic of merchants crossing (urban) legal boundaries has not been investigated specifically before, though the issue has been identified in the context of studies on conflict management and legal pluralism discussed below. The question of legal pluralism is central to any analysis of medieval jurisdictions and the crossing of legal boundaries. This term was developed in legal anthropology to conceptualize the existence of overlapping normative systems in a colonial context. This was a response to the portrayal of jurisdictions as a monopoly of the governing bodies of a state, and of law as being state law. The aim was to bring into the discussion informal and unrecognized norms that co-existed with state law, such as custom and morality, and orderings that existed outside the formal legal body.⁸ Although theories of legal pluralism are now criticized for ultimately encompassing everything, and therefore becoming unusable as a tool for interpreting law,⁹ the concept itself is increasingly applied in the context of pre-modern legal history, especially when it concerns the Hanse.¹⁰ In this context, legal pluralism is considered to be a useful term to describe situations in which there existed not only competing and overlapping normative frames, but also a myriad of legal fora which could be utilized by parties seeking to manage their conflicts.¹¹

Such a situation existed in late medieval northern Europe, where Hanseatic merchants could access a number of legal fora: that of their own town, of their lord where relevant, of the Holy Roman Emperor and of the church. They could potentially also use the courts of the towns or regions that they visited, and those of the Hanseatic Kontore. In each of these courts, different laws might be applied. In addition, they could utilize diplomatic means to manage their conflicts, or they could try to settle cases using more or less informal methods, like mediation and arbitration, or they could activate their economic and social networks. Finally, merchants could choose to escalate a conflict through confiscation of goods or reprisals. This access to multiple norms, fora and methods was not unique to Hanseatic merchants.¹² However, as Justyna Wubs-Mrozewicz has pointed out, there were three reasons why Hansards developed their own strategies of conflict management. Specifically, Hanseatic issues around mobility, responsibility for other Hansards and the complex politics they were involved in as subjects of different overlords meant that Hanseatic traders were more likely to cross legal borders than other merchants in northern or southern Europe.¹³

Because the concept of legal plurality has proven to be applicable in the context of late medieval northern Europe, we would also like to utilize it here, though we are aware that this usage is different from legal pluralism as it was originally defined.¹⁴ As the contributions in this issue will also showcase, the plurality of jurisdictions available to merchants were navigated with ease and provided opportunities for ‘forum shopping’ when they were faced with legal challenges. A relevant issue in that context is to establish to what degree different legal systems were perceived as such by merchants, urban inhabitants and by those representing the legal system in a town. There are clear signs that legal pluralism was recognized by contemporaries from various pieces of evidence. As Philip Höhn has pointed out, entries in the Niederstadt registers from Lübeck often included a formula that parties would not submit themselves to church, imperial or secular courts or laws, suggesting that it was recognized that there was a plurality on two levels: that of the courts and that of the law.¹⁵ An article of maritime law from the town of Kampen specifically notes that it was only valid for ships coming to that town, and that other laws had to be abided by elsewhere.¹⁶ An act of parliament from Scotland allowed for the possibility that foreign laws could be applied in the case of goods that had washed ashore from a country where such goods did not fall to the king as was the case in Scotland.¹⁷ These, and many other examples, show that plurality was widely recognized as the norm in late medieval urban society. This medieval awareness only confirms the validity of discussing late medieval urban legal practice in northern Europe as one defined by plurality.

Such examples also show that this plurality was rarely considered to be a problem.¹⁸ Höhn has argued, moreover, that it actually benefited merchants, as it increased the options available to them to manage their conflicts.¹⁹ When they did not achieve the required result utilizing one legal route, there were many other routes open to them. As a result, cases could drag on for years or even decades. The aim in such cases was not so much to resolve a conflict quickly and cheaply, or even to resolve it at all, but rather to keep communication channels open. In a world in which international traders were connected to many others through complex credit relations, one’s reputation for creditworthiness was a very valuable asset. To maintain this reputation, it was important to show that one was able to act in cases in which one’s interests had been damaged by another party. At the same time, it was important not to escalate a conflict too much, as that might prove to be even more damaging. By utilizing the great variety of legal options available to them, and sometimes by threatening to use other options, parties tried to prevent escalation while also maintaining their honour and reputation.²⁰ Recently, historians have come to recognize that medieval actors were not necessarily looking to resolve a conflict when they took legal or diplomatic steps. This has led to a shift in the literature from analyses of the methods of conflict resolution to ones focusing on the strategies to manage conflicts, which rather sought to prevent, contain or escalate disputes.²¹

As the studies included in this special issue show, actors were careful in their choice of which legal authorities to seek out to resolve or manage their conflicts. There existed a strong sense of collective duty and honour within groups, such as, for example, among the Hanseatic merchants trading in London, as discussed by Ester Zoomer, or the Swedish urban householders accommodating foreign guests, as shown by Sofia Gustafsson. Hanseatic merchants in particular were often part of different collectives, such as the community of their hometown, their overlordship and the Hanse, and had to navigate crossing legal boundaries in accordance with what benefited the interests of one or more of these collectives. In addition, they might have to take into consideration the interests of any communities they visited. Knowledge of how to stay within or conveniently cross urban legal boundaries was also important in this context. Breaking with the expectations that existed within these groups could lead to sometimes severe and prolonged conflict, so merchants would try to utilize expected options first. Only when these options were exhausted might parties seek solutions elsewhere. At the same time, international traders can also be seen to have taken advantage of plurality, seeking out fora that might provide a more advantageous outcome in an individual lawsuit. This was the case, for example, in the inheritance settlement discussed in Christian Manger’s text.

As will be clear to the reader by now, the boundaries that are referred to here were rarely physical. Although medieval travellers would also cross physical borders on their journeys, and none was as material as the town wall symbolizing the jurisdiction of the town community, the crossings detailed in this special issue are generally metaphorical. Legal boundaries could delimitate both geographical and social spaces, that is, they could encompass a territory or a group of people, or both at the same time.²² As a general rule, anyone falling under a jurisdiction was then restricted to the laws valid there and the available courts. Town magistrates sometimes made a point of communicating these restrictions, as the example of Lübeck above has shown. However, the individuals under their authority were often also subject to jurisdictions which overlapped with that of the town, such as that of the church. And even though town communities might, to varying degrees, be legally separate units from the countryside around them, they often still belonged to larger territories which had their own norms and courts. This meant that individuals could also access justice there, even though the town magistrates might consider this a competing jurisdiction. One could question whether individuals were actually crossing legal boundaries when they made use of the opportunities naturally available to them as members of concentric communities.

The boundary crossings detailed in this special issue concern especially those between jurisdictions that were completely separate. International merchants left behind not only their territory and their community, but also the norms and the courts that belonged to them. They might then seek access to foreign jurisdictions to which they were not naturally subject, to seek justice or to manage a conflict. This crossing of international traders into foreign jurisdictions required authorities to come up with legal solutions. This started with the simple question of access: should foreigners be allowed into the geographical space of a territory? When authorities realized that there were benefits to allowing merchants into one’s territory, protection against physical harm was soon provided. Whether or not a foreigner should also be allowed into the social space and gain actual rights was a different matter, and one that was solved differently according to time and place. The solutions that were offered by lawmakers, town authorities and the Hanse in northern Europe from c. 1350 to 1600 will be discussed from different angles in this special issue, as will the strategies adopted by the merchants themselves.

In the past, some scholars have suggested that the issues and problems emanating from the plurality of laws regulating medieval trade and shipping were solved by the creation of an overarching, universal merchant and maritime law. According to this view, the law merchant or lex mercatoria was a law or set of rules that was created by merchants without the involvement of any princely or other authority and that was universally valid for trade between towns. This idea was especially popular among advocates of private ordering, who sought ways to establish a legal order regulated by the parties involved rather than by a government body, and who presented this medieval ideal as an example to be followed.²³ This idea of a universal lex mercatoria is, however, based on a series of misunderstandings, as many authors have since argued.²⁴ Instead, trade was generally regulated locally, and merchant law administered by local authorities.

A related debunking of the myth of a universal maritime law, which has not been as strongly defended as that of the lex mercatoria, took place more recently.²⁵ Maritime law did develop differently from merchant law, as compilations of rules came into existence from the thirteenth century onwards and some of these were disseminated more widely and gained validity in spaces beyond local, regional or national borders. The laws of Oléron, for example, came into being in the wine-trading regions of Normandy and Brittany and were written down in or shortly before 1286.²⁶ They were subsequently adopted in France and in England, and probably in Scotland, and in a Middle Dutch translation found their way to ports along the North Sea and Baltic littoral. Their dissemination there did not necessarily mean that they were adopted, though, and many towns are known to have had their own local maritime regulations, such as Riga, Danzig, Lübeck, Hamburg and Kampen.²⁷

Even if there had been universal mercantile or maritime norms, these would most likely still not have led to a universal legal practice, the existence of which might have simplified the crossing of legal boundaries by merchants. Medieval law was characterized by its fluidity. Albrecht Cordes, Philipp Höhn and Alexander Krey have differentiated between three forms of law, one of which is law as practice. According to them, law is only one of many solutions to resolve conflicts. Legal practices may be structured by law, but they could have a normative role in return.²⁸ This is confirmed by the verdicts concluded in cases of maritime law, which seldom refer to actual laws, but rather established what was normal or customary in a certain situation. As J.D. Ford has suggested for sixteenth-century Scotland, no distinction was made between what was considered to be lawful and what was considered to be normal and, as such, normative.²⁹ It should come as no surprise, then, that the law as expressed in judgments varied from time to time, and from place to place.³⁰

The contributions in this issue

The geographical and conceptual area of this series of studies is northern Europe, defined as the area bordering the North and Baltic Seas. This is also the main area in which the Hanse operated. In the later Middle Ages, northern Europe functioned as an integrated economic region, mostly, though not wholly, separately from its southern counterpart. With commercial exchange, moreover, came the exchange of (legal) ideas and cultural influences.³¹ Maritime law in northern Europe, for example, developed almost completely independently from that in southern Europe.³² The Hanse as a collaborative organization of cities and towns in the North Sea and Baltic region, which plays a role in several of the contributions, is also a uniquely northern European phenomenon. The period of focus is the later Middle Ages extending into the sixteenth century. This is the key period of activity of the Hanse and its merchants, and also the earliest period for which the sources allow for an analysis such as that proposed here. The problems associated with crossing urban legal boundaries may well have continued beyond 1600, but with the increasing incorporation of towns and cities in national states, the circumstances for merchants in the early modern period likely changed. These changed circumstances are better investigated elsewhere.

It is possible to identify common themes and findings in the contributions. The articles approach this special issue’s overarching question of how merchants operated in different and overlapping jurisdictions from a range of perspectives: those of the merchants who tried to manage their affairs that often straddled the jurisdictions of a number of towns and cities, of the Hanse as an organization representing merchants from different regions, of urban magistrates of a single town who administered justice to merchants from different backgrounds or provided diplomatic support to their own citizens abroad, and of (urban) lawmakers who had to cater for merchants crossing jurisdictions.

Ulla Kypta in her article ‘Merchants’ agents and the process of bottom-up harmonization between European towns, fourteenth to sixteenth centuries’ investigates one of the methods that allowed for merchants to cross urban legal boundaries in the first place. The use of proxies for trade in foreign markets was common in late medieval Europe and was accommodated through the use of letters of procuration that were issued by the merchant’s hometown to establish the validity of a proxy in the host town. Kypta concludes that these letters show common characteristics which allowed them to be used throughout Europe, also beyond the northern European trading networks. The development of shared processes and norms was important in times of legal pluralism as it created a common merchant culture which allowed merchants to cross legal boundaries without problems.

The studies included here show that towns were invested in their merchants and their conflicts when they were in foreign ports. Two of the articles explore the systems in place during conflicts between merchants across legal boundaries. By studying cases of broken agreements and settlements of cases that involved parties in separate jurisdictions, we gain a better understanding of how merchants and town magistrates negotiated and utilized legal pluralism. Ester Zoomer examines the negotiation of Hanseatic legal boundaries by merchants in London and Bruges. In her article ‘“To his utter undoing in this world”: maintaining, contesting and crossing Hanseatic legal boundaries in medieval London and Bruges’, Zoomer discusses several cases in which individual merchants broke out of these boundaries by involving foreign or local authorities to protect their own interests. The Hanse’s own transregional institutions, however, expected issues within the organization to be solved internally. Seeking out external aid shifted the fragile balance between the towns within the network and the legal system in the host town that the Hanse merchant was involved in, and conflicts could quickly escalate. As such, Hanseatic merchants had to strategically negotiate the overlapping and contesting authorities of the Hanse itself, their hometown and their host town and its lord. Hanseatic institutions, in the meantime, representing and also referring to the common good of all of its members, tried to maintain control over any conflicts and prevent non-Hanseatic parties from gaining influence.

Where Zoomer examines Hanseatic conflicts in cities outside the network, Christian Manger studies the strategies involved in altercations between parties within it. In his article ‘The politics of reciprocity: urban councils and intercity conflict management in Reval (Tallinn) and Lübeck, c. 1470–1570’, Manger aims to identify how the cities of Lübeck and Reval managed the conflicts between their citizens across jurisdictional boundaries while trying to maintain their close relationship. Through a case-study of inheritance settlements between merchants, he shows that by using different conflict management strategies utilizing both legal and diplomatic measures, the town magistrates were able to prevent, contain or de-escalate conflicts. Carefully balancing the interests of their burghers with those of the Hanse as a whole, shared notions of reciprocity and the common good played an important role in the dealings of the two towns over such conflicts. At the same time, Manger shows that the merchants themselves also actively made use of legal pluralism, provoking conflict in order to force a desirable reaction from their town council.

The final two articles present case-studies of towns from different parts of northern Europe, providing insight into the different strategies that town councils adopted in dealing with foreign merchants visiting their communities and their courts. Contrary to accepted historiography, which has suggested that guests were generally at a disadvantage in local courts, these studies reveal that foreigners were often treated no differently from locals in those towns for which visitors were important business partners. In her article ‘Administering justice to foreigners: international merchants and mariners before the late medieval Aberdeen courts’, Edda Frankot investigates whether the town magistrates introduced any special policies or procedures administering justice to foreigners and whether any legal boundaries were created as a result. She concludes that foreigners were largely subject to the same policies and procedures as local merchants, and that any special measures tended to concern itinerant traders more generally. Foreign merchants themselves also utilized the options available to them like local traders. As such, crossing legal boundaries did not present an obstacle to either magistrates or foreign merchants, but was rather part and parcel of the practices associated with international trade.

Comparing the findings of this study with those of Sofia Gustafsson as presented in her article ‘The legal position of guests in late medieval Stockholm’ suggests that each town deployed its own strategies concerning the presence of foreign traders while simultaneously protecting its international trade. Using the main characteristics of the concept of legal certainty, Gustafsson studies the position of foreigners in Stockholm. She concludes that the authorities in Stockholm were able to offer foreign visitors such certainty by providing public, explicit and clear regulations, an institutionalized jurisdiction and equal, just and impartial judgments in court. In Stockholm, which was an entrepôt for Baltic trade largely conducted by Hanseatic merchants, a detailed set of rules for the town’s foreign visitors was enacted, including rights and duties that the local population were also required to respect. The relationship between local hosts and visiting merchants was specifically regulated and the former were given a responsibility for ensuring that the latter were aware of the law. Where Gustafsson finds that the Swedish laws specifically catered for the hosting and supervision of guests by local citizens, there is no evidence of a similar construction in Scots law. This confirms that the legal culture of the town, potentially as part of a larger jurisdiction, as was the case in Sweden and Scotland, influenced the principles that underpinned the policies towards strangers. At the same time, both Stockholm and Aberdeen benefited greatly from business from visiting merchants and were careful to treat them fairly in court. In both cities, foreigners made use of the local courts and could expect to be dealt with in a largely similar manner as resident merchants.

Taken together, the articles demonstrate that urban legal boundaries were permeable and malleable, and mostly formed no major obstructions to international traders despite the issues that could arise when managing the interwoven networks of credit and debit that existed throughout northern Europe, for example in inheritance cases. Trade and shipping by their very nature involved the crossing of legal boundaries, and the parties involved in economic activities became accustomed to dealing with the challenges legal pluralism brought. They did this, for example, by being flexible and pragmatic when it came to negotiating and utilizing different and overlapping jurisdictions when solving legal conflicts, and by developing shared processes and norms when it came to appointing proxies when crossing legal borders. At the same time, merchants might seek to confirm the boundaries between them and others when it suited them, particularly in a Hanseatic context when it came to excluding others from privileges and reclaiming conflicts, but also between citizens and strangers in relation to local privileges. Urban magistrates might at the same time deal differently with foreign merchants before their courts: some treated them almost like their own, whereas others set up stricter legal boundaries between citizens and guests. Urban lawmakers created legal boundaries in an effort to strike a balance, giving privileges to particular groups while restricting their activities at the same time. The findings of the articles presented here offer interesting perspectives on how crossing urban legal boundaries worked, and was expected to work.